| Wells Fargo Bank, N.A. v Bonanno |
| 2017 NY Slip Op 00211 [146 AD3d 844] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v RussellBonanno et al., Defendants, and Maureen Bonanno,Appellant. |
Schwartz & Ciesinski, LLP, Garden City, NY (Maria Schwartz of counsel), forappellant.
Hogan Lovells US LLP, New York, NY (Heather R. Gushue, David Dunn, andChava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Maureen Bonanno appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County(Adams, J.), dated August 26, 2014, as granted that branch of the plaintiff's motionwhich was for an order of reference insofar as asserted against her, and denied her crossmotion, inter alia, to dismiss the complaint insofar as asserted against her as abandonedpursuant to CPLR 3215 (c).
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiff's motion which was for an order of reference insofar asasserted against the defendant Maureen Bonanno is denied, and that branch of thedefendant Maureen Bonanno's cross motion which was pursuant to CPLR 3215 (c) todismiss the complaint insofar as asserted against her as abandoned is granted.
In October 2003, the appellant and her former husband obtained a loan from WellsFargo Home Mortgage, Inc., in the principal sum of $322,700, which was secured by amortgage on their home in Seaford, New York. In August 2011, the plaintiff, WellsFargo Bank, N.A., as successor by merger to Wells Fargo Home Mortgage, Inc.,commenced this foreclosure action alleging that the appellant and her former husbanddefaulted on their payment obligations by failing to pay principal and interest chargesthat came due on June 1, 2009. The appellant was personally served with process onAugust 20, 2011, but did not interpose an answer to the complaint. Although theappellant attended mandatory foreclosure settlement conferences on February 7, 2012,and May 9, 2012, a settlement could not be reached. At the conclusion of the secondconference on May 9, 2012, the Supreme Court marked the settlement conference heldand advised the plaintiff that it may proceed with the action.
Nearly two years later, by notice of motion dated March 22, 2014, the plaintiffmoved for an order of reference. The appellant cross-moved to dismiss the complaintinsofar as asserted against her on several grounds, including the plaintiff's failure toinitiate proceedings for the entry of a default judgment against her within one year afterher default in answering the complaint. The Supreme Court granted the plaintiff's motionand denied the appellant's cross motion, finding, inter alia, that the plaintiff haddemonstrated good cause for the delay in prosecuting the action and had not abandonedit. We reverse the order insofar as appealed from.
[*2] CPLR 3215 (c) provides that "[i]f the plaintiff fails totake proceedings for the entry of judgment within one year after the default, the courtshall not enter judgment but shall dismiss the complaint as abandoned . . .unless sufficient cause is shown why the complaint should not be dismissed." Here,although it is undisputed that the appellant defaulted in September 2011, the plaintiff didnot initiate proceedings for the entry of a default judgment until March 2014. Thus, theplaintiff was required to establish "sufficient cause" why the complaint should not bedismissed, which requires a showing that it had a reasonable excuse for the delay intaking proceedings for the entry of a default judgment, and that it has a potentiallymeritorious cause of action (seeMaspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d793 [2016]; Aurora LoanServs., LLC v Hiyo, 130 AD3d 763, 764 [2015]; Pipinias v J. Sackaris & Sons,Inc., 116 AD3d 749, 751 [2014]). Here, while the plaintiff and the appellantwere engaged in mandatory foreclosure settlement conferences for a period ofapproximately three months in 2012, at the conclusion of the second settlementconference on May 9, 2012, the plaintiff was authorized to proceed with the prosecutionof this action. However, the plaintiff took no steps to initiate proceedings for entry of adefault judgment until nearly two years later, and it failed to demonstrate a reasonableexcuse for this delay (see HSBC Bank USA, N.A. v Grella, 145 AD3d 669 [2d Dept 2016]; U.S. Bank,N.A. v Dorvelus, 140 AD3d 850, 852 [2016]; Whiteside v Manfredi, 132AD3d 851, 852 [2015]; Kohn v Tri-State Hardwoods, Ltd., 92 AD3d 642, 643[2012]; cf. Wells Fargo Bank,N.A. v Adickes, 137 AD3d 1365 [2016]). Accordingly, the Supreme Courtshould have denied that branch of the plaintiff's motion which was for an order ofreference insofar as asserted against the appellant, and granted that branch of theappellant's cross motion which was pursuant to CPLR 3215 (c) to dismiss the complaintinsofar as asserted against her as abandoned.
In light of our determination, we need not address the parties' remaining contentions.Eng, P.J., Balkin, Sgroi and Barros, JJ., concur.